House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Aged Care and Senior Australians, Minister for Youth and Sport, Senator the Hon Richard Colbeck)

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This package of two Bills will establish the National Sports Tribunal (Tribunal) to ensure the Australian sporting community has access to an effective, efficient, transparent and independent specialist tribunal for the fair hearing and resolution of sporting disputes.

The National Sports Tribunal Bill 2019 provides for the establishment and operation of the Tribunal. The National Sports Tribunal (Consequential Amendments and Transitional Provisions) Bill 2019 deals with the consequential and transitional matters arising from the enactment of the National Sports Tribunal Act 2019.

Establishing the Tribunal will implement the Government's Response to the Review of Australia's Sports Integrity Arrangements (the Wood Review), in so far as the Government agreed (in-principle) with recommendations 26-37 of the Review, which deal with the establishment and operation of such a tribunal.

The Wood Review, the report of which was published on 1 August 2018, is the most comprehensive examination of sports integrity arrangements ever undertaken in Australia. ^[1]

The Wood Review Panel, in reaching its conclusions regarding the resolution of sporting disputes in Australia, examined similar models overseas, including in the United Kingdom, New Zealand, Canada and Japan, and determined that establishing an entity such as the proposed Tribunal would significantly enhance the credibility of sport in Australia. The Tribunal as recommended by the Wood Review and established through these Bills, will deliver a service sorely needed in Australia - an independent, timely, transparent, cost-effective and reliable system of sports dispute resolution.

The Tribunal will provide a forum for the determination of disputes through private arbitration, or through mediation, conciliation or case appraisal, and will not involve the exercise of judicial power. The jurisdiction of the Tribunal will be enlivened and shaped by agreement between parties to a dispute. Agreements enlivening the jurisdiction of the Tribunal will be effected either through the policies, rules, by-laws and other constituent documents of a sport (and a person's acceptance of membership, consenting to be bound by those constituent documents), or by specific agreement between relevant parties to a dispute otherwise arising under the policies, rules, by-laws and other constituent documents of a sport.

Establishing the Tribunal with a statutory underpinning means that the Tribunal can be vested with powers to properly inform itself, including by requiring the attendance of witnesses and the provision of documents. This was also a key recommendation of the Wood Review, and will set the Australian National Sports Tribunal apart from foreign and international analogues.

In summary, the National Sports Tribunal Bill 2019:

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establishes the National Sports Tribunal, with an Anti-Doping Division, a General Division and an Appeals Division

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provides for the appointment of suitably qualified members to the Tribunal

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sets out the process by which persons may apply to the Tribunal for arbitration of an anti-doping dispute or another sport-related dispute in the Anti-Doping and General Divisions of the Tribunal

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sets out the process for parties to make an application to the Appeals Division of the Tribunal

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provides for parties to apply for mediation, conciliation or case appraisal to be conducted in the General Division of the Tribunal

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provides for the appointment of the CEO of the Tribunal, sets out the CEO's functions, and provides for the staffing arrangements to support the Tribunal

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provides for the CEO to make (as a notifiable instrument) a determination governing the practice and procedure of the Tribunal

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provides for the Minister to make rules by way of legislative instrument

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generally provides for a two year time limit on the making of applications, unless that two year period is extended by way of legislative instrument.

The National Sports Tribunal (Consequential Amendments and Transitional Provisions) Bill 2019 will make consequential amendments to:

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paragraph 13(1)(k) of the Australian Sports Anti-Doping Authority Act 2006 , so as to ensure that the National Anti-Doping Scheme is required to authorise the ASADA CEO, in certain circumstances, to present certain assertions and information at hearings of the Tribunal

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subsection 13D(3) of the Australian Sports Anti-Doping Authority Act 2006 , so as to ensure that material obtained under a disclosure notice under that Act can be presented as evidence in the Tribunal

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Schedule 3 to the Freedom of Information Act 1982 , so as to ensure that material is exempted from release under that Act where its disclosure is prohibited by the secrecy provision at section 72 of the National Sports Tribunal Act 2019.

The Bill also provides for the application of the provisions of the National Sports Tribunal Act 2019 to disputes and decisions made before, on or after commencement.

Given that the establishment of a statutory tribunal to resolve sport-related disputes is new in the Australian context, the Government has decided to implement the Tribunal as a 2 year pilot, in the first instance. The Bill reflects this by containing a provision that imposes a 2 year time limit on the making of applications, or a longer time limit as specified in the rules.

Financial Impact Statement

There is no net cost to Government.